Holding a freelancer accountable to a contract/ammend a contract, without a signature

[justiceman]

I run a small ltd company.

All of my staff are self employed on a freelance basis. In more recent years I have got new freelancers to sign a contract of employment but more longer serving staff havent.

Some have been sent contracts with the instructions to print, sign and return but never have, yet we have continued to employ them. When a recent indicent resulted in me stating, "your contract says you will be paid in 30 days", I was responded to with "I dont have a contract"

Does a statment to the effect of "if you accept to under take this work on behalf of # then you are agreeing to abide by the terms, conditions and content of the attached employment contract" have any legal standing?

Similarly, can I ammend existing signed contracted with clauses / ammendments using the above statement or must I always get a physical signature?

If a freelancer refused to sign a contact what do I do?

[jaguarsuk]

Custom and Practice may apply here, but employment really isn't my bag baby. (Austin Powers is )

Ula will probably be bale to answer though.

[R0b]

Custom and Practice may apply here, but employment really isn't my bag baby. (Austin Powers is )

Ula will probably be bale to answer though.

Sounds like acceptance by conduct to me.

As we all know, contracts can be verbal or in writing and the statement above would suggest that its not a condition precedent for the contract to be signed. If the freelancer started work and didn't bother signing the agreement (trying to be a clever person judging by the response) then it could be implied that he/she accepted those terms so long as you can evidence the contract being sent to him.

[ULA]

It you have sent all your freelancers contracts with the request to "

print, sign and return" but they do not, yet they then actually carry out the services for which you have employed them, then on that basis they have "accepted" your terms.

If in the contract given to this particular freelancer you included the statement "if you accept to under take this work on behalf of # then you are agreeing to abide by the terms, conditions and content of the attached employment contract" then by carrying out the work they have accept.

I would just suggest that in future to safeguard this issue that you do get a signed contract back before any freelancer starts any work for you and you can make that a clause in the contract with wording such as "The provision of work to you in accordance with the agreed services will, under the terms of this contract, only be provided by xx [insert company name] upon receipt of a signed and dated copy of this contract." To make it easier consider whether you would be happy to receive an "e-signature" and the document being returned by email rather than a physical paper copy.

In terms of any amendments to existing contracts you will need to set out in a document, to each freelancer concerned, that you wish to amend, by way of an additional clause, their current contract [insert the date of that contract]. Detail what the new clause is and yes you will need to get them to agree to it by signing the document with the amendment. Again consider use of e-signature for this. You will also need to think about what you will do if a freelancer does not agree to the additional clause - they do not have to.

[justiceman]

Dear Rob and Ula

Thank you both in taking the time to reply. This has helped a lot.

rob yes I belive that said person was trying to be clever.

Ula I would be happy to accept E-signatures but I send the contracts out in PDF format so that they may not be edited. I am a very small buisness already struggling with overheads, so I would rather not have to purchase adobe sign. I note your point about freelancers not agreeing to the new clause. If they didnt agree to it then there would be something seriously wrong and I wouldnt want them working for me.

Kind Regards
JM

[ostell]

The latest free PDF viewer available from Adobe allows the addition of a signature to a PDF document. I've used it on several occasions.

[ULA]

Thank you ostell for the advice on PDF viewer to allow e-signatures.

justiceman on your point about the additional clause and if a freelancer does not accept it then you would not want them working for you then please remember that if you wanted to terminate their services then you would need to do so in accordance with any provisions set out in your contract with them.

[jaguarsuk]

The latest free PDF viewer available from Adobe allows the addition of a signature to a PDF document. I've used it on several occasions.

And in addition to this there are free apps such as Sign Me they can use on iPhone too.

[justiceman]

Thanks jaguarsuk I shall look into these.

Question to Ula ,@Rob and anyone else who has comented on this post (I welcome those from other members too).....

I recently spoke to one of the freelancers in question who said "I dont have a contract". To which I replied, that they did. I told them that they where sent it, asked to read, print, sign and return. The fact that they chose not to (as rob said, "by trying to be clever") their contract was "live" and legally binding.

The freelancer said that they had sought there own legal advice and this was not the case so we would have to agree to disagree.

Can anyone point me to some actually legal documentation to back up my claim that a contract is legally binding even if not signed? This will carry more weight to my "legal advice" as opposed to, "i've spoke to some people on legal beagles".

I have rewritten my freelancer contract (draft) and on the advice given by Ula used the text:

"The provision of work to you in accordance with the agreed services will, under the terms of this contract, only be provided by the Company upon receipt of a signed and dated copy of this contract."

I feel that by including this, I may be shooting myself in the foot as the freelancers know that regardless of signatures or not, I require them in order for my business to function (they are specialist, few and far between and decent ones are hard to come by)

Based on any written legal advice you can provided; would you suggest that I replace the above clause with:-

" Subject to (insert legal reference document and year", The contractor accepts that by under taking any such assignments on behalf of The Company, that they agree to abide by the terms, conditions, duties, clauses, schedules and content of this Agreement, in its entirety, irrespective of signatures"


I thank you in advance and look forward to your reply

[bobsa31]

this could be a difficult one, when you say freelancer, do you mean they are self employed, IE they pay their own tax and NI etc?

is the contract between your company and them, or your company and their LTD company?

In essence this probably isn't employment law, but contract law, and if they haven't signed a contract, then there is no contracts either implied or otherwise to fall back on. However, this is a minefield, if you set their hours of work, you or an employee supervises or controls them, then technically they are not freelancers and you should be paying their tax and NI, if not then you need to make sure that any contracts you issue are compliant with IR35 legislation.

[justiceman]

bobsa31

Yes the freelancers are self employed. Apart from myself as the director, everyone is a self employed freelance contractor; used for occasional work. One of the sections includes the following text:-

Nothing herein written shall be taken to infer or imply that the relationship between the Company and the Contractor is that of employer and employee. The parties agree that the Contractor is self-employed and shall be solely liable for payment of all Income Tax and National Insurance Contributions, if any, payable or due in respect of any payment(s) made under and/or in terms of this Agreement and the Contractor indemnifies the Company accordingly for all payments made by the Company to HMRC in respect of any tax or related liability on the part of the Contractor hereunder. The Company is not required to provide the Contractor with any work or Assignments of any description, and the Contractor is not obliged to carry out any work other than work or Assignments undertaken from time to time, as aforesaid, under and in terms of this Agreement.

ACAS seems to say yes - http://www.acas.org.uk/index.aspx?articleid=5385

THP solicitors also appear to say yes - http://thpsolicitors.co.uk/business-...answer-is-yes/

Your are right in terms of it being a mind field. The original template was given to my by another small business who had it drawn up by a Solicitor Advocate working for a company. As I have updated and ammended it, I now need to check that I comply with "The Unfair Contract Terms Act 1997" and now you have thrown IR35 into the mix!! Minefield for sure.

If a freelance contractor refuses to acknowledge receipt of, or sign my agreement, am I liable to pay tax on their wages? Do you think this might be why some people chose to ignore / not sign it?

[bobsa31]

It depends on how you are paying them. I'm a contractor, I invoice the companies I work for and receive payment within 30 days, I also wouldn't be allowed on site without a signed contract, background checks and appropriate liability insurance.

Potentially, you are leaving yourself wide open, in the absence of a signed contract that acknowledges the nature of the trading relationship, it could be argued by HMRC that the freelancers are actually employees. If you DM me your email address, I'll send you an example of an IR35 compliant contract that I would sign, depending on your industry it could be a starter for 10